This appeal is directed against the final order delivered by Ld. DCDRF, Coochbehar dated 15.102020 in CC no. 14 of 2018. The appellant Bharati Oraon filed the Consumer Complaint against respondents( Ops) for getting compensation etc.
The complaint case, in short, is that she had some problem with her right kidney and she consulted the Doctor ie. OP No.1, who prescribed a few medicines and also for some tests. He also advised her for a minor operation. Accordingly, she got USG of whole abdomen and x-ray of Kub Region done by Dr. P. Sanyal and other tests. Following the advice of OP No.1, she was admitted to Rithari Health Care Pvt. Ltd., Cooch Behar on 15.01.18. She also had made an advance of Rs 10,000/- to the OP No.3, who is the Manager of Rithari Health Care Pvt. Ltd. After her operation by OP No.1 and 2, she was discharged from the said Nursing Home on payment of the rest amount of Rs 25,000/-on 21.01.18. She was also advised to lead normal life as earlier.
On being discharged from the said Nursing Home, her condition got deteriorated and she felt urine problem and accordingly, the members of her family took her to Sanjivani Hospital Birpara and there also USG of whole abdomen was done on 07.02.18 by Dr. Subhrajit Bhadra, Sonologist. It was found that her right kidney was removed. At this, the members of her family became astonished and they approached the Doctor, who had actually operated but they were trying to shift the liability upon each other. Due to wrong treatment and medical negligence and hostile attitude, the Complainant incurred heavy loss and injuries. It is also alleged that the said Nursing Home did not supply the bill to them. The Complainant met the Ops several times and requested for compensation but they did not pay any heed to her request. Ultimately, a legal notice was served upon the Ops. Now, by filing this case, the Complainant prayed for Rs 15,62,000/- as compensation, Rs. 1 lakh for mental pain, agony and harassment and Rs. 5,000/-as litigation cost.
All the three Ops filed separate written version in accordance with their respective contentions and all of them denied the allegations made against them by the Complainant.
The OP No.1 admitted that the Complainant came to him on 15.12.17 with a complaint of her right Kidney. He clinically examined her and advised for USG of whole abdomen and X-ray (KUB). The USG report revealed that the Complainant had Grade-II HDN (Rt. Kidney), Profuse Debris in dilated Pelvicalyceal System in right side, large Multifaceted Calculus (largest 20.2 mm) and his (OP No.1) provisional diagnosis was Pyonephrosis. The OP No.1 accordingly advised the Complainant for admission in Nursing Home with a plan to open Pyelolithotomy/Nephrectomy, if required. It was further contended by OP No.1 that all the pre operative tests such as Blood TC, DC, Hg%, ESR, Platelet count, Urea, Creatinine, BT, CT, HIV, ECG, Digital Ex-ray etc. were conducted and after going through the reports of these tests, OP No. 1 infused two bottles of blood to the Complainant and performed Nephrectomy operation of Right Kidney on 16.01.18 upon the Complainant. It was further contended that prior to operation, everything was explained and necessary permission was also obtained for Nephrectomy operation i.e. removal of said Kidney. Accordingly, Nephrectomy operation was conducted and during post operative period also, sufficient care was taken. Before discharge of the patient, she was advised to take some medicines and to review after 7 days. She was also advised to consult Dr. Tarun Paul (OP No.2) for check-up on 20.01.18 but the patient did not. turn up for check-up. On the basis of the reports, the patient was discharged and at that time, all the test reports such as Blood TC, DC, Hg%, ESR, Platelet count, Urea, Creatinine, BT, CT, HIV, ECG, Digital Ex-ray etc. were handed over to her.
In his written version, OP No.2, denying all the allegations made by the Complainant against him, claim in that he was in no way connected with the treatment, nor took any part in the operation upon her as the patient was exclusively treated by OP No.1. According to him, on 20.01.18, OP No.1 referred the patient to him just to consult post-operative clinical status before discharge and upon clinical examination, he recorded his findings as he found at that time.
The OP No.3, denying all the allegations made by the Complainant against him, admitted that the Complainant had been admitted to his Nursing Home under OP No.1 and she was exclusively treated by him. According to him, there was no medical negligence and deficiency in service on their part. They also denied having received Rs.25,000/- from the Complainant at the time of discharge.
So, all the Ops prayed for dismissal of the Complaint.
Ld. Forum after recording evidences and hearing arguments came to a conclusion that only allegation was proved that during the process of treatment of Bharati Oraon( appellant) her right kidney was removed without obtaining her consent and it was deficiency of service on the part of OP No. 1 and 3 and they were asked to pay compensation Rs. 1,15,000/- and litigation cost Rs. 5000/-
Being aggrieved with this order, the appellant preferred the appeal on the ground that no adequate compensation was awarded in her favour for her loss of kidney, meatal pain, sufferings etc.
The appeal was admitted in due course and on the basis of receiving notice of appeal, all there OP’S have contested the appeal through Ld. Advocate Mr. C. Chakraborty and Mr. A. Rai.
The appellants case was conducted through Ld. Advocate Manika Burma.
Decision with reason,
Having heard the Ld. Legal counsels and on perusal of all material documents furnished in this case ,it is established beyond any doubt that the complainant, aged 35 years, a married women were sufferings kidney ailments and under the care and medical supervision of Dr. Wasim Raja ( OP No. 10- who after some tests advised her to have a surgery of her right kidney which was affected with grade II, HDN( RT Kidney), profuse debris in dilated pelvicalyceal system in right side. She was admitted at the Nursing home of OP No. 3 on 15.12.2017 for the surgery called open nephrectomy. The said operation was conducted on 16.12.2017 and she was discharged on 21.01.2018.
Now the bone of contention in this case confined to the point that before operation, the patient or the patient parties were not informed by the OP’s that her right kidney would be removed in total and necessary consent was not obtained from them. Regarding the process of treatment and surgical operation, no allegation of negligence, or wrong treatment is there.
During the course of hearing by submitting WNA the appellant mentioned that
a kidney of the petitioner was removed without an informed consent from her and/or her family members. That according to sub-rule (2) of rule 10 of the West Bengal Clinical Establishment (Registration, Regulation and Transparency), Rules, 2017, the patient shall have the right to a clear, truthful and substantial explanation, in the form of a counselling in a manner and language understandable to the patient, of all proposed healthcare intervention or procedure, wherein the person intends to perform such procedure or administer such intervention shall provide the following information as a part of such counselling: (a) her name and credentials to the patient; (b) possibilities of any risk of mortality or serious side effects; (c) problems related to recuperation; (d) probability of success and reasonable risks involved; (e) alternative healthcare intervention available; and (f) medical consequence of refusal etc.
The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 through para 7,16 of chapter 7 provides that before performing an operation. the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of a minor or the patient himself as the case may be. However, in the current case, no consent was taken from the patient nor any consent was taken from a family member of the patient or the appellant herein.
That the petitioner is entitled to compensation equivalent to her loss by the principle of restitutio in integrum which provides that a person entitled to damages should, as early as possible, get the sum of money which would put him in the same position as he would have been if he had not sustained the wrong as was held in Malay Kumar Ganguly versus Sukumar Mukherjee & Ors. (AIR 2010 SC 1162)
She further mentioned that Every human being of adult years and sound mind has a right to determine what should be done with his body; and a surgeon who performs the operation without his patient's consent, commits an assault for which he is liable in damages."
Ld. Advocate of the respondents by counter WNA canvassed argument before the bench that during the operation it is found the right kidney of the patient was damaged and full of organized puss was around the kidney. To safe guard the life of the patient complainant the respondent no. I decided to nephrostomy/kidney removal if the nephrostomy/kidney removal was not done and it was kept inside the body, it would be detrmental for the patient’s life, so the decision of nephrostomy/kidney removal taken urgently during the OT. After taking the urgent decision of the nephrostomy/kidney removal, for taking consent, the husband of the complainant was not found within the campus of the Nursing Home and the brother of the complainant patient was asked to bring the husband of the patient for signature on the consent form for the nephrostomy/kidney removal but the brother of the complainant failed to bring the husband of the complainant and under compelling circumstances and finding no other alternative, the respondent obtained the consent from the own brother of the complainant patient who claimed himself the guardian and brother of the patient complainant for the sake of emergency, though the consent of the husband of the patient complainant given before the schedule OT. It is further submitted that nephrostomy/kidney removal of the patient was done for the purpose of saving her life and for that result of operation the patient would not be disabled but she will be survived. If the decision was not taken during the OT, it might cause septicemia and death of the patient in post-operative period.
The respondent correctly and perfectly done his duty as per the standard treatment guideline, the respondent no. I treated and operated the kidney of the patient complainant with optimum care and supervision by the respondent no. 1 and 3.
After hearing both sides, it is further revealed that in order to safe and protect the life of the patient, the attending doctor at O.T. decided to operate, the nephrostomy for which removal of kidney was imperative at that point of time, the patient was not stable and not in a position to deliver her consent for such kidney removal. The husband or nearest kin of the patient were searched out. The husband was not found, then one Narayan Oraon claimed himself as brother of patient Bharati , was consulted by the doctor and O.T. stuff who gave consent for such operation of right kidney. The doctor and nursing home authority had no malintention to remove any uninfected kidney. They were compelled to remove the totally infected kidney to save the life of the patient.
On the other hand, that the process of obtaining consent from the patient party appeared to be haste, haphazard and negligence on the part of OP No. 1 and 3 are also established.
So the observations and findings of Ld. Forum are found correct, Justified and the impugned order passed very judiciously and the assessment of compensation was computed with very reasonable approach. Thus the grounds of appeal are found unworthy and devoid of any merit.
Hence, it is ordered
That the instant appeal is hereby dismissed on contest without cost and the order of Ld. Forum under appeal is confirmed.
Let the order be communicated to the Ld. DCDRF, Coochbehar.
